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Saturday, May 18, 2013

School poor quota sent to larger bench

New Delhi, April 5:
The Supreme Court today referred to a larger bench a writ petition
challenging the constitutional validity of the Right to Education Act
that reserves for the poor 25 per cent seats in most schools.

A bench of
Justices K.S. Radhakrishnan and Dipak Misra sent the matter to a larger
bench as the Federation of Public Schools, an association of over 350
private schools, claimed that the act violated the constitutional
rights guaranteed to private unaided institutions to run schools
without any government intervention.

The 25 per cent
quota applies to most schools, including private unaided non-minority
institutions. A three-judge bench of the apex court had upheld the
validity of the act last year.

The Supreme Court
has now sent the petition to a three-judge bench which is expected to
eventually forward it further to a five-judge bench since a three-judge
bench had already ruled on the subject in 2012.

The matter could
not be directly referred to a five-judge bench today because a two-judge
bench cannot recommend cases beyond a three-judge bench.

The petition,
filed through counsel Kamal Gupta, claimed that the court did not
consider earlier rulings by two Constitution benches which said the
state cannot interfere in the affairs of private schools.

Such interference
goes against constitutional provisions that enshrine equality before law
and prevent the state from discriminating between citizens on the
basis of religion, caste, or other considerations, the petition said.

The petitioner
submitted that the three-judge bench in 2012 had said the act applied to
non-minority unaided educational institutions and held it to be
unconstitutional insofar as minority-run educational institutions were
concerned.

The petition said
the applicability of the act to private unaided educational
institutions “abridges the unfettered fundamental rights of such
institutions to establish, run and administer their educational
institutions, which include the right to admit the students of the their
own choice”.

“Similarly, the
provisions of the RTE Act… at least insofar as it obligates private
unaided schools to admit at least 25 per cent students from
economically weaker and disadvantaged sections, are unconstitutional and
are liable to be declared void,” the petition said.

According to the
petitioner, when a substantial question of law on the interpretation of
the Constitution arises, it should be decided by a bench consisting of
at least five judges.

The petition
quoted Article 145(3) of the Constitution: “The minimum number of
judges who are to sit for the purpose of deciding any case involving a
substantial question of law as to the interpretation of this
Constitution or for the purpose of hearing any reference under Article
143 shall be five.”

It recalled that
an 11-judge bench in 2002 had held that the right to establish, run and
administer an educational institution is part of the freedom
guaranteed by Article 19()(g).

The law laid down by the 11 judges was further iterated and clarified by a bench of seven judges in 2005, the petition said.